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High Conflict Parenting Cases in Family Law

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By Jeremy Hogg, Associate, MST Lawyers

The outcomes of most parenting disputes heard by the Family Law Courts falls within a fairly standard range, from equal shared care of children between parents to one parent being the primary carer with the children spending somewhere between 3 and 6 nights a fortnight with the other parent. 

Whilst the Court must take an approach that is appropriate to the specific circumstances of each case, and whilst each parent will usually feel strongly about what they feel is best for their children, factors such as the parents’ ability to shield the children from conflict and to support their relationship with the other parent are usually more impactful on children’s wellbeing than the exact number of nights spent with each parent.  It is not uncommon for judges of the Family Law Courts to express frustration at fixation by parents on their ‘rights’ and ‘entitlements’, rather than the bigger picture of the children’s best interests.

Despite these challenges, however, in the end most parents are thankfully able to build a workable (if not cordial) parenting relationship and acknowledge the importance of the children enjoying a relationship with each parent.

In some situations, however, the conflict between parents is intractable and the Court is forced to perform a difficult balancing act between the children’s wellbeing, the risk of harm by exposure to conflict between the parents, and the benefits to the children of having a relationship with both of their parents.

A recent decision made by Judge Brown in the Federal Circuit Court of Australia highlights the seemingly impossible scenarios the Court is required to adjudicate in in high conflict situations.

The dispute related to a young child, referred to in the judgment as ‘X’, who was approximately 4 years of age.  The child’s mother, referred to as Ms Carter, was approximately 30 years of age whilst his father, referred to as Mr Morgan, was 15 years Ms Carter’s senior.

When the parties came to Court, X was living with his mother, Ms Carter, and his grandmother (referred to as ‘Ms S’) and had no contact with his father, Mr Morgan.  Somewhat unusually, X believed Ms S to be his mother and that Ms Carter was his sister.  He was primarily cared for by Ms S.  Ms Carter and Ms S had refused to allow Mr Morgan to see or spend any time with X.

The parties’ views on how and why the prevailing situation arose differed significantly.

According to Ms Carter the lead up to X’s conception and his early life occurred as follows:

  1. She and Mr Morgan met and entered into a brief casual sexual relationship at the behest of Mr Morgan.  She had no strong emotional engagement in the relationship and considered it to be a ‘friends with benefits’ arrangement only;
  2. Ms Carter broke off the arrangement a short time later, in response to which Mr Morgan perpetrated a brutal and violent rape against her.  Ms Carter’s pregnancy with X was a result of the rape by Mr Morgan (as on all previous occasions the consensual sex had been protected);
  3. Ms Carter, vehemently opposed to abortion, carried X to term however advised those around her that she was acting as a surrogate for her mother, Ms S, who had recently had unsuccessful IVF treatment in the hopes of having another child;
  4. Following X’s birth, she left the parenting of X primarily to Ms S in circumstances where it was too emotionally distressing to be X’s parent due to the circumstances of his conception;
  5. Unsurprisingly, she did not advise Mr Morgan of the pregnancy or X’s birth, and wished there to be no contact between Mr Morgan and herself and X.

Mr Morgan, however, portrays a different set of circumstances to Ms Carter, stating that:

  1. Ms Carter initially pursued him for a casual sexual relationship, which turned into an emotionally intense affair that Ms Carter abruptly called off for no apparent reason;
  2. There was no incident of rape, and that any such incident was fabricated by Ms Carter after the fact to explain her refusal to permit Mr Morgan to spend any time with X;
  3. In fact, Ms Carter had intentionally fallen pregnant so as to provide a child for Ms S, who had desperately wanted another child but whose recent IVF treatment had failed, and was now too old to make any further attempts, and whose plans to become a foster parent had not eventuated.

The two versions of events are irreconcilable: on Ms Carter’s version, Mr Morgan is a violent and contemptible man who subjected her to the greatest of indignities; on Mr Morgan’s version, Ms Carter is a manipulative liar who tricked him into providing his sperm so that Ms S could have a further child and then, after the fact, made false allegations against him to cover her tracks.

In assessing the parties’ conflicting narratives, the Court took into account a range of issues, including:

  1. That Ms Carter did report the alleged rape to police, but that she only did so after Mr Morgan commenced a legal process to spend time with X, and that whilst initially charges were laid the Director of Public Prosecutions did not ultimately pursue a prosecution against Mr Morgan for the rape;
  2. That Mr Morgan produced letters to him from Ms Carter professing her love for him and opining about them having children together, in contradiction of Ms Carter’s claim that she considered their relationship to be limited to no-strings attached sex;
  3. Inconsistencies in Ms Carter’s allegations about and timing of the alleged rape, and the lack of corroborating evidence (such as medical records);
  4. That in giving his evidence Mr Morgan presented as very open, honest and naïve, and that to conceal his true identity as a violent rapist would have required him to have been a consummate actor;
  5. That whilst Ms Carter was diagnosed as showing symptoms of PTSD and depression, she had expertise in that area and would have been able to represent those symptoms whether or not she was truly experiencing them. It was also conceded by the diagnosing psychologist that the symptoms claimed by Ms Carter could have also stemmed from the stresses of maintaining the false allegations against Mr Morgan, rather than the alleged rape;
  6. That the evidence of Ms S, which supported Ms Carter’s allegations, appeared at times to be glib and contrived.

Ultimately the Judge determined that, on the balance of probabilities, where he found Mr Morgan’s evidence more compelling it was more likely than not that the alleged rape did not occur.

In the course of the proceedings the Court also received guidance from experts regarding the likely impact of an introduction of X to Mr Morgan and, as a part of that process, X learning that Ms Carter was his real mother, not Ms S as he had always been told, and of the allegations made against Mr Morgan by Ms Carter.

The Judge was left with a situation regardless of his decision one of the parents was at risk of suffering a grave injustice.  If Ms Carter was required to facilitate a relationship between Mr Morgan and X, it might force her to consort with her rapist on an ongoing basis.  On the other hand, if Mr Morgan was not permitted to spend time with X, Mr Morgan might be punished for a crime he hadn’t committed and prevented from having any relationship with his son.

Ultimately, however, the potential outcomes for Mr Morgan and Ms Carter were not the Court’s primary consideration.  As in all parenting disputes the paramount consideration must be the best interests of the child and the protection of the child from harm, and Judge Brown found that those interests would be best served by X not having any contact with Mr Morgan at the present time.  In reaching his decision Judge Brown took into account that:

  1. Regardless of the conflict between the parties, X was currently well loved and was being appropriately cared for by Ms Carter and Ms S;
  2. X being introduced to Mr Morgan would lead him being exposed to issues regarding his conception, including the alleged rape, and that there was no evidence available that therapeutic assistance in the reintroduction would could adequately shield X from suffering psychological harm;
  3. Ms Carter’s mental health made it likely that should the Court require her to facilitate a relationship between X and Mr Morgan she would withdraw from X’s care.

In making his decision Judge Brown stated that ‘the ticking time bomb continues to tick’, acknowledging that the issues regarding X’s conception and parentage were being delayed temporarily rather than being resolved.

Whilst the circumstances of Mr Morgan, Ms Carter and X are unique, they serve as an apt example of the difficult issues that the Family Law Courts are faced with and demonstrate a situation where an outcome may appear grossly ‘unfair’ to a parent but which is, ultimately, determined to be in the best interests of a child.  Unfortunately for X it is likely that there will be many years of litigation ahead between Ms Carter and Mr Morgan.

If you require assistance with a difficult parenting dispute please contact our Family Law team by email family@mst.com.au or by telephone +61 3 8540 0200.